by Bill Sizemore, McClatchy News Service
/
April 7, 2014

Despite restrictions imposed by a legal opinion, Big Brother is still watching you.

More specifically, your license plates.

Throughout Hampton Roads, 45 cameras snap rapid-fire pictures – hundreds of them per hour – of every license plate that passes within their view. Each photo is stamped with the date, time and location of the vehicle. In most cases, the images are stored for periods ranging from 24 hours to 30 days.

Elsewhere in the state, mainly Northern Virginia, they’re kept for as long as two years.

Most of the automated license plate readers are mounted on police cruisers. The plate numbers they capture are matched against lists of stolen vehicles and those associated with high-profile crimes such as homicides, robberies and abductions.

In some cases, the plate numbers are used to ferret out more mundane miscreants such as tax and parking scofflaws.

Many law enforcement officials swear by the devices, calling them a useful high-tech crime-fighting tool. But civil libertarians are raising privacy concerns, saying the technology gives the police unfettered power to track citizens’ every move.

License plate readers have proliferated in Virginia over the past five years, fueled by advancing technology and the availability of anti-terrorism grants from the federal government.

But the trend hit a bump in the road a little more than a year ago when then-Attorney General Ken Cuccinelli issued an opinion saying that massive, indiscriminate collection of data by the readers violates state law.

Collecting such data in a continuous, passive manner, not directly related to specific criminal investigations, is forbidden by the 2001 Government Data Collection and Dissemination Practices Act, Cuccinelli wrote in the February 2013 opinion.

Cuccinelli’s opinion effectively emasculated the technology as a crime-fighting tool, many law enforcement officials say.

“We have a significant investment in this equipment, and it’s almost useless now,” Norfolk Police Chief Michael Goldsmith complained to newly elected Attorney General Mark Herring in a meeting at Norfolk City Hall last month.

Without committing himself either way on the issue, Herring replied that it’s time for a national conversation to find the proper balance between public safety and privacy.

The Virginia State Police operates 44 license plate readers statewide, purchased at prices ranging from $295 to $374 per unit. The department began dumping the data after 24 hours in response to Cuccinelli’s opinion, according to spokeswoman Corinne Geller. Before that, the information had been stored indefinitely.

From February 2010 through the end of 2012, license plate readers helped the state police recover 529 stolen vehicles and 751 stolen license plates and arrest 229 wanted persons, Geller said. In one recent high-profile case, she said, the readers were used in investigating a string of arsons on the Eastern Shore last year.

The state police believe that by deleting the data after 24 hours, they’re in compliance with Cuccinelli’s opinion, Geller said.

Other police agencies, however, haven’t been willing to go that far, pointing out that an attorney general’s opinion is advisory and doesn’t carry the force of law.

“They are expensive pieces of equipment,” said Dana Schrad, executive director of the Virginia Association of Chiefs of Police. “If we were going to scale back retention of data to say you can only keep it for 24 hours, then it becomes useless.

“We are concerned about the privacy of individuals. Our officers are private citizens as well. But we don’t want to give up the use of an important criminal investigative tool simply because we don’t have clear guidelines on their use.”

The opinion has resulted in a patchwork of policies on data retention around the state, including Hampton Roads, where most of the license plate readers used by local police were purchased with a regional $1.4 million grant from the U.S. Department of Homeland Security.

Virginia Beach adheres to the 24-hour rule. Portsmouth retains its data for 72 hours. Norfolk, Chesapeake and the Chesapeake Bay Bridge-Tunnel police – who operate a stationary camera on the bay crossing – keep it for 30 days.

The Suffolk Police Department has practically halted all use of the devices since the Cuccinelli opinion, spokeswoman Diana Klink said.

Police departments in Northern Virginia are keeping license plate data for periods ranging from six months to two years, which prompted a bipartisan pair of state lawmakers to introduce legislation in the General Assembly this year seeking to give Cuccinelli’s opinion the force of law.

At the urging of police agencies, the legislation was carried over to the 2015 legislative session. In the meantime, the two lawmakers – state Sen. Chap Petersen, D-Fairfax County, and Del. Rich Anderson, R-Prince William County – have organized the Ben Franklin Liberty Caucus to try to forge a consensus on the issue.

“If we feel that there needs to be one law that deals specifically with license plate readers, then maybe we can pass that law,” Petersen said. “But of course, that’s today’s technology. Tomorrow’s technology could be having a drone drop into somebody’s backyard.

“It’s this issue of warrantless observation, where you have some type of device that tracks somebody without a warrant. Is that legal under Virginia law? Well, my position is, it’s not.”

Anderson expressed a concern that license plate data could be merged with other, more personal information, posing a still-greater privacy threat.

“With the exponentially increasing levels of technological sophistication, because it moves so fast, it’s hard to come up with a rule set that stays ahead of it,” he said.

For Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, the crucial issue is not how long the data is kept, but any passive collection of personal data without a demonstrable link to suspected criminal activity.

She hinted that the ACLU might pursue the issue in court.

“This is the Bill of Rights issue of our time,” she said: “How should you be protecting people’s privacy in an age of technology that was completely uncontemplated and unimagined at the time our Constitution was written?

“I think most people believe that the government shouldn’t be able to track you 24 hours a day.”

Police personnel who use license plate readers argue they’re not invading anybody’s privacy because they’re operating on public thoroughfares.

“Your license plate is displayed in public, so there’s no expectation of privacy,” Capt. Scott Burke, who runs the program for the Portsmouth Police Department, said during a recent demonstration of the technology.

Burke said the department had accumulated a database of 1.2 million plates and “flushed them all down the drain” in response to the Cuccinelli opinion. “It profoundly affected our use of this equipment,” he said.

Still, the police are finding uses for the devices. In addition to checking for stolen and other wanted vehicles, the Portsmouth department has begun checking plates against the city’s “scofflaw” list of vehicles with three or more unpaid parking tickets. They can be impounded if found parked on a city street.

Burke’s cruiser was outfitted with two cameras, one on each side of the trunk, linked to a laptop computer mounted on the dashboard. As he drove around downtown Portsmouth, the system emitted a quiet beep each time a photo was taken. The laptop displayed two images: a full view of the vehicle and a close-up of the license plate.

For all its sophistication, however, the system is fallible.

At one point, the quiet in Burke’s cruiser was shattered by a siren noise followed by an urgent-sounding voice alert: “Stolen vehicle!”

The system had matched a photo with a stolen vehicle from Rhode Island whose plate number contained several consecutive 1s. But the image on the laptop wasn’t a license plate at all. The camera had mistaken the pickets of a front-porch railing for a row of 1s.

“It’s not foolproof by any means,” Burke said.

Even before the Cuccinelli opinion, two police agencies on the Peninsula had given up on the technology.

After operating a cruiser with a license plate reader for three years without identifying a single stolen vehicle, the Hampton Police Department sold the reader to the city treasurer’s office in 2009.

“It didn’t prove to be an effective tool for us,” said Cpl. Mary Shackelford, a police spokeswoman.

The Newport News Police Department followed suit a few years later, turning over its six readers to the treasurer.

The Peninsula treasurers, however, are happy to have the cameras. They’re using them to nab taxpayers who are delinquent in paying the local personal property tax levied on motor vehicles. When found, the vehicles can be immobilized with a boot or towed to an impound lot.

Hampton Treasurer Robert Williams has been running his program since 2007, when he bought the city’s first license plate reader. Newport News Treasurer Marty Eubank plans to kick off his program in May. Both said they won’t store the data.